Gonzales v. Tombone

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 97-10484

(Summary Calendar)
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JAMES C GONZALES,

Petitioner-Appellant,

versus

JOHN M TOMBONE,

Respondent-Appellee.

Appeal from the United States District Court
For the Northern District of Texas
(3:97-CV-570-X)

November 24, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

James Gonzales, a federal prisoner convicted in the United
States District Court for Utah on two counts of possession of an

unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871

and presently incarcerated in Seagoville, Texas, brings a habeas

corpus petition pursuant to 28 U.S.C. § 2441. Gonzales alleges

that the Bureau of Prisons (BOP) violated its statutory authority

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
by defining his offense (possession of an unregistered firearm) as

a crime of violence and thereby denying him eligibility for early

release after his successful completion of the BOP’s 500-hour drug

and alcohol treatment program. See 18 U.S.C. § 3621(e)(2)(B)

(giving the BOP authority to reduce sentence for “nonviolent”

offenders who complete the drug and alcohol program).

Although the statute does not define nonviolent offender, the

relevant BOP regulations define its meaning by reference to the

term “crime of violence” in 18 U.S.C. § 924(c)(3). See 28 C.F.R.

§ 550.58 (1995). In turn, section 924(c)(3) defines “crime of

violence” as:

an offense that is a felony and))

(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or

(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). The BOP has interpreted section 924(c)(3)

in Program Statement 5162.02 ¶ 7(a), which states that an inmate

convicted of a firearms offense is a “violent offender” and

therefore not eligible for the sentence reduction under 18 U.S.C.

§ 3621(e)(2)(B). The BOP determined that Gonzales’ conviction for

possession of an unregistered firearm makes him a violent offender

and per se ineligible for the sentence reduction.

Gonzales claims that the BOP’s Program Statement is

inconsistent with 18 U.S.C. § 924(c)(3) because the simple

possession of an unregistered firearm does not “ha[ve] as an

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element the use, attempted use, or threatened use of physical

force,” nor does it “by its nature, involve[] a substantial risk

that physical force against the person or property of another may

be used in the course of committing the offense.” 18 U.S.C. §

924(c)(3). The BOP’s Program Statement is an interpretive rule not

subject to the Administrative Procedure Act’s notice-and-comment

requirements, and as such, is only entitled to “some deference”

from a reviewing court. See Reno v. Koray, 515 U.S. 50, 61, 115 S.

Ct. 2021, 2027, 132 L.Ed.2d 46 (1995). Nonetheless, we recently

considered another portion of the same BOP Program Statement that

defines “felon in possession” as a violent offense for purposes of

prohibiting the sentence reduction under section 3621(e)(2)(B) and

held that it was a permissible construction of the statute and

regulations. See Venegas v. Henman, No. 97-30042, 1997 WL 637867,

*11-16 (5th Cir. Oct. 31, 1997) (holding that the BOP’s

categorization of “felon in possession” as a violent offense for

purposes of denying sentence reduction under section 3621(e)(2)(B)

did not violate the statute or regulations). In Venegas, we

explained:

The Bureau did not exceed its statutory authority by
using its discretion to exclude from consideration for
early release those prisoners convicted of possession of
a weapon by a felon and offenses enhanced under the
sentencing guidelines for possession of a weapon.

1997 WL 637867, at *11.

We note that there is a split among the circuits on this

issue. Compare Roussos v. Menifee, 122 F.3d 159, 164 (3d Cir.

1997) (holding that the BOP’s interpretation is in conflict with

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the statute and its own regulation), Davis v. Crabtree, 109 F.3d

566, 569 (9th Cir. 1997) (holding that “the BOP must consider felon

firearm possession a nonviolent offense under § 3621(e)(2)(B)”),

and United States v. Miller, 964 F. Supp 15, 20 (D. D.C. 1997) (“In

sum, the plain language of 18 U.S.C. § 924(c)(3) and the demands of

statutory interpretive consistency require the conclusion that

[felon in possession] is not a crime of violence for the purposes

of 18 U.S.C. § 3621(e)(2)(B).”), with Venegas v. Henman, No. 97-

30042, 1997 WL 637867 (5th Cir. Oct. 31, 1997), Sesler v. Pitzer,

110 F.3d 569, 571-72 (8th Cir. 1997) (holding that BOP’s

categorization of conviction for using a firearm during and in

relation to a drug trafficking crime as a violent offense did not

violate statute), cert. denied, ___ U.S. ___, 118 S. Ct. 197

(1997), and Parsons v. Pitzer, 960 F. Supp. 191, 193 (W.D. Wis.

1997) (holding that BOP’s interpretation of “felon in possession”

as violent offense is permissible construction of the statute).1

Through its Program Statement 5162.02 ¶ 7(a), the BOP has

determined that a person convicted of possessing an unregistered

firearm is a violent offender because the offense, “by its nature,

involves a substantial risk that physical force against the person

or property of another may be used in the course of committing the

1
Gonzales appears to make a claim that the circuit split
denies him equal protection of the laws because prisoners in
different circuits will be treated differently under the same
Program Statement. This claim ignores the structure of our legal
system whereby circuits can disagree over statutory interpretation
and the Supreme Court has the final authoritative decision on the
legal dispute. See Parsons v. Pitzer, 960 F. Supp. 191, 193 (W.D.
Wis. 1997) (rejecting equal protection claim based on the circuit
split over interpretation of BOP Program Statement 5162.02).

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offense.” 18 U.S.C. § 924(c)(3). The fact that the Sentencing

Guidelines do not treat the possession of a firearm as a violent

offense under section 924(c)(3) is not sufficient to carry the day

for Gonzales.2 We find no principled way to distinguish this case

from our reasoning in Venegas, where we upheld the BOP’s definition

of “felon in possession” as a violent offense. The BOP’s Program

Statement making Gonzales ineligible for the sentence reduction

because of his possession of an unregistered firearm is a

permissible construction of the statute. Moreover, we reject

Gonzales’ claim that the BOP entered into a binding contract to

give him a reduced sentence if he completed the drug program;

Gonzales puts forth no evidence of such a contract, nor does he

argue how it could be binding. Accordingly, the decision of the

district court is hereby AFFIRMED. Gonzales’ petition for writ of

habeas corpus and his motion to file a supplemental brief are

DENIED.

2
In Venegas, we noted that the Sentencing Guidelines state
that the “felon in possession” offense is not a “crime of
violence.” See U.S.S.G. § 4B1.2(1), comment. (n.2) (1995); see
also Stinson v. United States, 508 U.S. 36, 113 S. Ct. 1913, 123
L.Ed.2d 598 (1993) (holding that felon-in-possession offense is not
a violent offense for purposes of sentencing). We held, however,
that the definition of “crime of violence” in the sentencing
context is not binding in the context of interpreting the early
release statute. Venegas, 1997 WL 637867, at *14-17.

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